Silvester v. Kamala Harris CA 10 Day Wait

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  • MDFF2008

    Ultimate Member
    Aug 12, 2008
    24,735
    New Court Case

    SAF, CALGUNS FOUNDATION SUE
    CALIFORNIA OVER FIREARMS STATUTE

    BELLEVUE, WA - The Second Amendment Foundation has joined the Calguns Foundation and three California citizens in a federal lawsuit against the California Department of Justice and Attorney General Kamala Harris, challenging the state's requirement that gun owners wait at least ten days before taking possession of an additional firearm.

    The case is known as Jeff Silvester et.al. v Kamala Harris, et.al.

    "We've joined in this lawsuit because it makes no sense for California to require a gun owner who already possesses a firearm from buying another one within a few days," said SAF Executive Vice President Alan Gottlieb. "We recall what Dr. Martin Luther King said, that A right delayed is a right denied'."

    "Laws that infringe on the right to purchase arms have to be more than just merely rational and must directly serve important governmental interests," added Gene Hoffman, chairman of the Calguns Foundation. "Here, the law is not just irrational but actually contradictory. We filed this case right before Christmas in the hopes that, by next Christmas, gun owners will not suffer this continuing infringement on their right to acquire firearms."

    "The State has absolutely no reason to infringe the rights of California gun owners who already possess firearms when they buy another one," said attorney Jason Davis who is representing the plaintiffs.

    California currently requires the registration of handguns in California. And, beginning January 2014, it will also require the registration of all newly-purchased rifles and shotguns. Notably, California keeps a current database of all residents who are prohibited by state or federal law from owning or possessing firearms. Individual plaintiffs Jeff Silvester, Michael Poeschl, and Brandon Combs each have firearms registered with the State of California. Mr. Combs and Mr. Silvester also have firearms licenses from the State that constitute ongoing background checks.

    "In just about every other state in the U.S., I as a law-abiding gun owner could walk in and, after passing an instant national background check, walk out with a firearm to defend myself in my home," Poeschl said. "What's really frustrating is that California is one of the very few states that forces gun owners to register all handguns that they buy. If the State's database saying that I already lawfully own a gun isn't proof that I don't need a cooling-off' period, then what is?"

    "I have a license to carry a loaded firearm across the State," Silvester noted. "It is ridiculous that I have to wait another 10 days to pick up a new firearm when I'm standing there in the gun store lawfully carrying one the whole time."

    "As a collector, I submitted to a Live Scan background check and obtained a Certificate of Eligibility to Possess Firearms from the State of California at my own expense," added Combs. "In the Internet era, where every California gun dealer has a computer connected directly to the State's databases, there is no logical reason to force me to wait 10 days and make another trip simply because California doesn't want to acknowledge the Certificate that it issued to me. I have registered guns, and I have the State telling me that I can possess guns, but for some reason I can't exercise my constitutionally protected rights for another ten days? That's insane."

    < Please e-mail, distribute, and circulate to friends and family >
    Copyright © 2011 Second Amendment Foundation, All Rights Reserved.

    Note to Mods: The last line says please distribute to family and friends; so I believe this is ok to publish.
     

    Tootall

    Feelings Hurter
    Oct 3, 2008
    7,587
    AACO
    This line right here sticks out to me in a good way. maybe someway to incorporate this and other mlk quotes into the open holster rally on mlk day?

    "We recall what Dr. Martin Luther King said, that A right delayed is a right denied'."
     

    Markp

    Ultimate Member
    Dec 22, 2008
    9,392
    This is not insanity, This is Sparta!

    633678890751567559_thisissparta_THIS_IS_SPARTA-s800x600-23497.jpg
     

    SkunkWerX

    Ultimate Member
    Jul 17, 2010
    1,577
    MoCo/HoCo border
    I still cannot fathom how MD and CA (and others) can support a 7 or 10 day wait, for someone who already has a safe full of handguns?
    It's totally ridiculous and unjustifiable using their "cool off period" reasoning.

    note: Not that I support any wait period for someone on their first purchase, either.

    Hats off to the Californians fighting the good fight! Keep up the pressure! :thumbsup:
     

    yellowfin

    Pro 2A Gastronome
    Jul 30, 2010
    1,516
    Lancaster, PA
    I still cannot fathom how MD and CA (and others) can support a 7 or 10 day wait, for someone who already has a safe full of handguns?
    It's totally ridiculous and unjustifiable using their "cool off period" reasoning.
    It's justifiable according to the ideology of those who passed, signed, and support the law: harassing gun owners as an objective in and of itself. They simply want to make it annoying, inconvenient, expensive, confusing, and discouraging as much as possible as often as possible to make existing gun owners leave, new ones from never bothering to start, and ones from out of state to not move in. Nothing more nothing less. Any other explanation is useless and a waste of time even entertaining the thought.
     

    MDFF2008

    Ultimate Member
    Aug 12, 2008
    24,735
    I still cannot fathom how MD and CA (and others) can support a 7 or 10 day wait, for someone who already has a safe full of handguns?
    It's totally ridiculous and unjustifiable using their "cool off period" reasoning.

    note: Not that I support any wait period for someone on their first purchase, either.

    Hats off to the Californians fighting the good fight! Keep up the pressure! :thumbsup:

    I can at least understand the thinking behind the cooling off period for the first purchase ever; but subsequent purposes truly confuse me.
     

    tomh

    Active Member
    Jul 21, 2008
    220
    I still cannot fathom how MD and CA (and others) can support a 7 or 10 day wait, for someone who already has a safe full of handguns?
    It's totally ridiculous and unjustifiable using their "cool off period" reasoning.

    note: Not that I support any wait period for someone on their first purchase, either.

    Hats off to the Californians fighting the good fight! Keep up the pressure! :thumbsup:

    It's even more interesting that in MD, you can be a collector which says, "I collect handguns" and erases the one-per-30 day requirement. Yet, it still takes upwards of 7-10 days or more for the "not disapproved" check by the State Police.

    It makes no sense to delay a already known "not-disapproved" gun owner ...
     

    SkunkWerX

    Ultimate Member
    Jul 17, 2010
    1,577
    MoCo/HoCo border
    It's even more interesting that in MD, you can be a collector which says, "I collect handguns" and erases the one-per-30 day requirement. Yet, it still takes upwards of 7-10 days or more for the "not disapproved" check by the State Police.

    It makes no sense to delay a already known "not-disapproved" gun owner ...

    Which only points to the fact that they have no other reason except to make it harder and more confusing for peopel to acquire legal firearms, as Yellowfin has so astutely pointed out, above.

    It's nothing more than a game they are playing.
     

    krucam

    Ultimate Member
    I'm late posting this update, but I guess time isn't really of the essence here...

    2012-05-15 15 0 Scheduling Order SCHEDULING ORDER: signed by Magistrate Judge Sheila K. Oberto on 5/15/2012. Non-Dispositive Motions filed by 9/25/2013. Dispositive Motions filed by 10/30/2013, Pretrial Conference set for 1/29/2014 at 08:30 AM in Courtroom 2 (AWI) before Chief Judge Anthony W. Ishii. Bench Trial (7 Days) set for 3/25/2014 at 08:30 AM in Courtroom 2 (AWI) before Chief Judge Anthony W. Ishii (Kusamura, W) (Entered: 05/15/2012)

    Justice delayed...
     

    HT4

    Dum spiro spero.
    Jan 24, 2012
    2,728
    Bethesda
    I did not know about this case. It's interesting and, in a way, disappointing. Until now, the SAF always seemed to me very smart in picking its battles. This case seems a much closer call than others it has filed. While the analogies are not perfect, I can think of several contexts in which waiting periods/delays for constiutitonal rights have been approved by courts, including marraige licenses, registering to vote, abortion, demonstration/protest permits, etc... While there are (in my view) substantial arguments that the RTKBA is distinguishable from these, but I am not overly optimistic as I was with Heller and am with Wollard. Given the number of other more burdensome restrictions out there, I would think that te SAF's limited resources are better spent elsewhere.

    That said, good luck to the SAF and CalGuns!
     

    Al Norris

    Spud Head
    Dec 1, 2010
    746
    Rupert, Idaho
    Think about it for a minute, HT4.

    You already have a handgun (or any other firearm). You passed the 10 day waiting period on that purchase. The State Knows this (the gun has already been through the process and is registered with the CA DOJ). What is the States rational reason for making you wait another 10 days to purchase another handgun (or any other firearm)?

    It cannot be for a purported public safety purpose - you already possess a handgun (or any other firearm).
    It cannot be for some sort of "cooling off" period - you already possess a handgun (or any other firearm).

    The question being, under what rational basis does CA deny possession (for ten days) of firearms (after the purchase and transaction have been made) to anyone after the first waiting period has been served and subsequent purchases are made?
     

    Maestro Pistolero

    Active Member
    Mar 20, 2012
    876
    Think about it for a minute, HT4.

    You already have a handgun (or any other firearm). You passed the 10 day waiting period on that purchase. The State Knows this (the gun has already been through the process and is registered with the CA DOJ). What is the States rational reason for making you wait another 10 days to purchase another handgun (or any other firearm)?

    It cannot be for a purported public safety purpose - you already possess a handgun (or any other firearm).
    It cannot be for some sort of "cooling off" period - you already possess a handgun (or any other firearm).

    The question being, under what rational basis does CA deny possession (for ten days) of firearms (after the purchase and transaction have been made) to anyone after the first waiting period has been served and subsequent purchases are made?

    Agreed, Al. And rational basis is the lowest level of scrutiny that the SCOTUS said was 'off the table' in deciding whether a fundamental right is worth insisting upon. And at the core of the right, no standard of review is even needed, as per Heller. If it's facially unconstitutional, you don't even reach a standard of review.

    Some might argue that if one already has firearm(s), that it is no undue burden on the right as one is already keeping, if not yet bearing. But even the undue burden test is just another form of interest balancing, AKA rational basis. The ease with which some courts have introduced the phrase 'undue burden' when talking about fundamental rights ought to offend every red-blooded American.

    Ezell told us that you can't ban a range (or a church, or a library, for that matter) in one town, because they are permissible in the next town.

    Even more to the point, Heller says you can't ban handguns, because long guns are legal. I believe you can't be made to wait for a Glock, just because you already own a Seecamp, or vice versa. Especially so, absent any reason whatsoever.

    The burden is clearly on the Government. To whatever extent the courts ultimately limit the right beyond existing uncontroversial regulations (no felons, etc., licenses to carry, training requirements that aren't onerous, and the like) they will have to create new stare decisis for how all fundamental rights are treated in the future.

    So this could be dangerous ground for liberty that goes well beyond just 2A rights. But it is absolutely a fight that MUST be fought and won in the courts.
     

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